This Originating Summons was heard before the Honourable the Chief Justice on July 18, 1980 when it was dismissed with costs. The last day for filing the notice of appeal was August 18, 1980. No notice of appeal was filed by that date.

On August 29, 1980 an application was made before me for an extension of the time prescribed for the filing of the notice of appeal. The reason for the failure to file the notice of appeal in time is stated in the affidavit of the appellant's solicitor filed in support of the application, as follows:—

"…The Notice of Appeal was prepared on the 18th day of July 1980. However the cause paper file pertaining to this matter was misplaced in my office library which was then undergoing renovations. Hence the said Notice of Appeal was not flied in court. It was only on the 20th day of August 1980 in the afternoon after an exhaustive search that I discovered the file.

Upon an inspection of the file, I noticed that the Notice of Appeal was not filed in court. I immediately instructed my clerk to file the same, but the same was rejected by the Registry of this Honourable Court as the last day for filing the Notice of Appeal expired on 18th August 1980."

In my view the facts disclosed in the affidavit indicate that neither the solicitor nor his clerk used sufficient diligence to ensure the appeal being brought in time.

It was the duty of the solicitor for the applicant to exercise reasonable diligence to ensure that the notice of appeal was filed within the time prescribed for bringing the appeal even though the file was mislaid. If the file was mislaid, all that the solicitor had to do was to go to the Registry of the High Court, copy the heading of the case, prepare a notice of appeal and have it filed in the Registry. This was quite a simple thing to do, but no effort at all was made to do it. Instead, time was allowed to run and over a month passed before the file was found and then an attempt was made to file the notice of appeal.

There are numerous reported decisions, both here and in England dealing with the point in issue in this case. The cases show that the court has a discretion in the matter which must be exercised judicially after considering all the circumstances of the case. They also show that for an application to extend time to succeed there must be circumstances which warrant the exercise of the court's discretion in favour of the applicant. There is also a long line of cases which show further that a mistake or oversight on the part of the applicant's solicitor or on the part of the solicitor's clerk is not a sufficient ground for granting an extension of time to file a notice of appeal or a memorandum or petition of appeal. There is very strong support for this view in Ratnam v Cumarasamy [1965] 1 MLJ 228; [1964] 3 All ER 933, where Lord Guest in delivering the judgment of the Privy Council, observed at page 229:—

"The Rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material upon which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules, which is to provide a timetable for the conduct of litigation.

In this case the only material before me was the affidavit of the appellant's solicitor. The ground there stated was that the solicitor's file was mislaid. That, as stated earlier, did not prevent the solicitor from filing a notice of appeal. In my judgment, the facts disclosed gross negligence on the part of the appellant's solicitor and did not merit the exercise of judicial discretion in favour of the applicant. The application was therefore dismissed.